Significant Alimony After a Six-Year Marriage in Alabama

There is an accepted truism, a myth, if you will, that Alabama courts don’t award alimony after a marriage of less than 10 years. From time to time, courts do award alimony after short-term marriages, usually in special circumstances, for example after one of the spouses has given the other a sexually-transmitted disease, or after one of the spouses has enticed the other to give up a great career to move and then has initiated divorce shortly thereafter. And I have seen lots of divorces with alimony after marriage terms of less than 10 years, but I live in that (so-called) unusual world where divorcing couples are cooperative with each other. In the world inhabited on a daily basis by divorce court judges and adversarial divorce lawyers, it is rare to see courts award significant alimony in other circumstances. To this statement, we must now add “but it happens.”

Some of the facts of Lackey v. Lackey, Case No. 2070603 (Ala. Civ. App. January 9, 2009) certainly seem strong for alimony. The husband was first an intern and then a resident in preparation for a career as a plastic surgeon. At the time of trial, he had just turned down an annual salary of $175,000 with bonus potential based on productivity. The wife had worked as a nurse but had quit her job to care for the parties’ two children and her older child from a former marriage. She testified that her decision was necessary because the husband was so busy with his residency that all the parenting and household burdens fell on her. But on the other hand, there’s the term of the marriage: only six years.

The court allowed the wife to relocate to Kentucky over the husband’s objections. Tomorrow’s note will deal with the issues this presented concerning the Alabama relocation act. The focus of this note is on the alimony and other support the court awarded.

The trial court ordered the husband to pay $1,500 per month alimony to the wife. The opinion doesn’t mention any term of years, but it states that the husband on appeal argues that the award should have been temporary, so one assumes this is permanent alimony, payable until the wife remarries or cohabitates with a member of the opposite sex. I couldn’t tell the wife’s age, but with children aged 11, 6, and 2, one would think she is not all that old; and the opinion says both parties were “young and in good health.” So if the wife doesn’t remarry this alimony could continue for  decades. The court also ordered the husband to pay COBRA health insurance for the wife for three years and to pay $50,000 toward her attorney’s fee.

In analyzing the alimony award, the appeals court quoted from Ex parte Elliott, 782 So. 2d 308 (Ala. 2000): “When dividing marital property and determining a party’s need for alimony, a trial court should consider several factors, including ‘the length of the marriage, the age and health of the parties, the future employment prospects of the parties, the source, value, and type of property owned, and the standard of living to which the parties have become accustomed during the marriage.”‘ The appeals court also stated that courts have considered the pursuit of a professional license to the extent it produces income from which support can be paid.

In the present case, the evidence indicates that the parties were married for six years. Both parties are young and in good health. The husband has the ability to earn substantially more than the wife. Even though the husband had been earning $42,000 per year before and at the time of the trial, the husband had been offered a job with a base salary of $ 175,000 annually. See Ebert v. Ebert, 469 So. 2d 615, 618 (Ala. Civ. App. 1985) (“[The] ability to earn, as opposed to actual earnings, is a proper factor to consider in deciding … an initial award of … periodic alimony.”). The wife testified that she had earned less than $30,000 from her most recent job as a nurse and had earned between $32,000 and $35,000 when she lived in Kentucky. The two automobiles were the only property owned by the parties. The husband owed $ 126,500 in student loans and credit-card debt; the wife owed $ 14,500 on a consolidated loan.
During the marriage, the parties were never financially stable, and it is apparent that they had relied on the wife’s parents and credit cards for money. The husband testified that he had been verbally abusive, and there was evidence of one incident of physical abuse. The evidence indicated that, throughout the marriage, the husband had pursued residencies in order to be able to practice as a plastic surgeon. The salaries for those residencies were modest, and the husband was required to work long hours, which resulted in the wife being left with most of the responsibility for caring for the parties’ children.
Based on the foregoing, especially the meager amount of marital property and the disparity in the parties’ abilities to earn, we conclude that the trial court did not exceed its discretion in awarding the wife periodic alimony.
The appeals court affirmed the trial court’s award of a $50,000 attorney fee, rejecting the husband’s argument that he could not afford to pay it and that the wife’s parents could afford it.

Whether to award an attorney fee in a domestic relations case is within the sound discretion of the trial court and, absent an abuse of that discretion, its ruling on that question will not be reversed. Thompson v. Thompson, 650 So. 2d 928 (Ala. Civ. App. 1994). “Factors to be considered by the trial court when awarding such fees include the financial circumstances of the parties, the parties’ conduct, the results of the litigation, and, where appropriate, the trial court’s knowledge and experience as to the value of the services performed by the attorney.” Figures v. Figures, 624 So. 2d 188, 191 (Ala. Civ. App. 1993). Additionally, a trial court is presumed to have knowledge from which it may set a reasonable attorney fee even when there is no evidence as to the reasonableness of the attorney fee. Taylor v. Taylor, 486 So. 2d 1294 (Ala. Civ. App. 1986).

The appeals court reversed the portion of the trial court’s order calling for payment of the wife’s COBRA health insurance, because there was no evidence in the record that COBRA insurance was available through his employer. The wife argued that this provision was merely stating the court’s intention that the husband provide her health insurance for three years, regardless of method. The appeals court rejected this argument, however, saying “We cannot . . . ignore the clear, unambiguous language in the trial court’s judgment.”

One comment

  1. Phillip Lackey says:

    I am the plantiff in the above case. While there are several factors erroneously determined as “fact” by the court in the above the real issue here is the speculative nature with which the court assigned my income. Becoming a board certified physician is a bit like becoming a major league baseball player. You have to do your time in residency (kind of like a minor league farm team)making a meager wage before you can practice independently or sit for board certification (play in the major league). In my particular case I was a resident when I married and a resident when I divorced. Prior to that I had completed college and medical school and a year of residency before being married at my own expense. During my marriage we recieved no support from anyone except that which my former wife’s parents provided for the benefit of a step-child who recieved no support from his biologic father (and only this at their initiative). Just as a baseball player develops his skills in college and in the minor leagues prior to graduating to the major league I was on track to be a board certified plastic surgeon. Supposing I was a baseball player in the minor league going through a divorce, would it be within the court’s discretion to impose his speculated major league salary? Many baseball players are approached even in high school with speculative earnings, would they then be bound to that level of income in the face of a pending divorce? The law provides for increases in levels of alimony and child support when increases in income occur. The court lacks a crystal ball to predict the future, but in my case they dug one out of the closet. At the time the court made their award, $3,500 represented my entire before tax income. By the time I completed my plastic surgery training given the speculation by the court, I am placed with an arrearage of over $42,000 (plus 12% interest) and a attorney fee award of $50,000 all while having a net worth of negative $125,000. Not to mention having to drive 600 miles to visit with my children when my schedule allows. All this based upon speculation by the court about an income potential that had yet and could not yet be realized until the completion of my training. It makes no sence. To add insult to injury, the reality of the situation as it materialized was that 1 week after the divorce was final my former wife had a breast augmentation and a tummy-tuck to the toon of $15,000…but she couldn’t afford to buy her health insurance….go figure?

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